The intellectual property enforcement coordinator is beginning a...

“patent trolling” in intellectual property litigation (CD June 5 p12). The interagency review by IPEC will evaluate procedures CBP and the ITC use to determine the scope of exclusion orders, which are issued by the ITC in Section 337 cases to bar imports of intellectual property-infringing merchandise, said a Federal Register notice. Comments on several issues related to the review are due July 21. The interagency group will come out with recommendations from its review within six months, IPEC said. Violations of Section 337 of the Tariff Act of 1930 occur when foreign goods that infringe intellectual property rights -- like patents, copyrights and trademarks -- are being sold in the U.S., and a viable domestic industry exists that is using the protected technology. If the ITC finds violations of Section 337 in an investigation, it may issue cease and desist orders and exclusion orders. Exclusion orders bar imports that infringe the intellectual property rights at issue, and may be either limited (applying to one company) or general (applying to all infringing products). CBP is tasked with enforcing the exclusion orders. Because exclusion orders don’t cover all imports of a given product -- they only bar infringing imports -- CBP must determine whether a particular product infringes the intellectual property rights and should be barred. CBP enforcement of exclusion orders was recently at issue in a Court of International Trade case on CBP’s refusal of entry to a Corning Gilbert coaxial cable connector based on an ITC exclusion order. Despite CBP’s argument that it can’t undertake detailed patent infringement analyses for every product potentially subject to ITC exclusion orders, the court said CBP should have done more, and reversed the agency’s decision to refuse entry. The government subsequently withdrew an appeal of the decision. IPEC said the interagency review of CBP exclusion order enforcement will be chaired by that office, a division of the Office of Management and Budget, and will include representatives from the ITC, U.S. Trade Representative, and the departments of Homeland Security, Treasury and Justice. The group will evaluate procedures used to determine the scope of exclusion orders, and ensure such procedures are “transparent, effective, and efficient,” IPEC said. One focus will be whether CBP uses transparent procedures when determining whether an article is subject to an ITC exclusion order. The group will also look at ways to improve ITC enforcement instructions to CBP. IPEC seeks comment in connection with its review on recommendations for changes to agency policies, practices, guidance and regulation.